9911796707
TMI Blog1996 (3) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... February 23, the detenu was arrested and on that date itself he was sent to Alipore Central Jail by respondent No. 2 purportedly in the exercise of his powers under the provision of rule 76 of the Second Schedule to the Income-tax Act. The petitioner has contended that the detenu is not a defaulter or deemed defaulter. He has no means to pay the tax liabilities. In any event, the mandatory procedures relating to arrest and detention of a defaulter had not been complied with before directing his detention. An affidavit-in-opposition which has been affirmed by one, Dilip Kumar Chowdhury who is the Tax Recovery Officer has been filed wherein it is stated that all the requirements for passing the order of arrest and detention of the father of the petitioner have been complied with. The respondents have also produced before us the records of the matter. It is not disputed that before a person can be arrested and detained, the requirements of the law as laid down in section 222 of the Income-tax Act as also the provisions contained in the Second Schedule are required to be complied with. Section 222 of the said Act provides for drawing up of proceedings by the Tax Recovery Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presence of one, Sri Ranjan Bose. The signature of the witness appears in the said notice and the same appears to have been accepted as valid by respondent No. 2. However, in support of the said service no affidavit was filed. Rule 73(1) of the Second Schedule provides that no order for the arrest and detention in civil prison of a defaulter shall be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause as to why he should not be committed to the civil prison, and unless the Tax Recovery Officer, for reasons recorded in writing is satisfied. Rule 73(1) provides for a notice upon the defaulter calling upon him to appear before him to show cause as to why he should not be committed to the civil prison, unless for reasons to be recorded he is, inter alia, satisfied that the defaulter, has, or has had since the drawing up of the certificate by the Tax Recovery Officer, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. Rule 73(2) provides that notwithstanding anything containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer and that he has not committed any act of bad faith. Rule 86 of the said rules provides for an appeal against any original order not being an order which is conclusive, passed by the Tax Recovery Officer under the Schedule to the Chief Commissioner or Commissioner within 30 days from the date of the order appealed against. Sub-rule (3) of rule 86 empowers the appellate authority to stay the execution of the certificate. From the records, it appears that a notice dated February 6, 1996, under rule 73 was served on him by respondent No. 2 which has been received by J. K. Banthia. In the said notice Certificate Cases Nos. 1777 to 1794 and 1042 to 1045 have been mentioned. In the said notice dated February 6, 1996, also, J. K. Banthia was described as managing director of Banthia Jute Suppliers Ltd. having the same address. In terms of the prescribed form the status of the person and the certificate numbers are required to be mentioned. But, in the instant case, the status of the defaulter had not been mentioned. The date of the certificate has also not been stated. From the requisition dated February 19, 1996, it appears that a total sum of Rs. 75,15,000 had been assessed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Cal) ; Laxmi Narain Anand Prakash v. CST, AIR 1980 All 198 [FB] ; Shyam Sundar Bajaj v. ITO [1973] 89 ITR 317 (Cal) and Rama Devi Agarwalla v. CIT [1979] 117 ITR 256 (Cal). Mr. Kapoor would urge that admittedly the entire proceeding was completed on one day and the order dated February 23, 1996, would show that no opportunity to show cause had been given to the detenu as to why he should not be committed to the civil prison. Such a proceeding according to learned counsel could not be completed on any day and in any event, no reason has been assigned in support of the finding that the detenu has the means to pay the arrears of income-tax demands, the entire proceeding is vitiated in law. Learned counsel states that the said order has been passed in a mechanical manner. Our attention has been drawn to the fact that from the records it would appear that as late as on February 13, 1996, the Commissioner of Income-tax, West Bengal-VI, addressed a letter to the Commissioner of Income-tax with a copy of the Tax Recovery Officer to the following effect : "The Tax Recovery Officer is again directed to complete his enquiries. If, on enquiry, it is found that the assessee is not havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habeas corpus has been made out. In Wade and Philips' Constitutional and Administrative Law, Ninth edition, at page 442, it is stated that there are ten aspects of the law relating to individual liberty ; first, the grounds on which an individual may be deprived of his physical liberty ; second, the remedies which an individual has if he wishes to contest the legality of such a deprivation. Imprisonment for civil debt is stated to be one of the grounds of personal freedom. There cannot be any doubt that amongst others habeas corpus is one of the available remedies in case of infringement of freedom by reason whereof a person detained without legal jurisdiction, may secure proper release. It is a writ of right not of course. It is, inter alia, applicable when a Tribunal has no jurisdiction to detain the petitioner. It is available where errors are jurisdictional. It is also available where the error appears on the face of the record. In Homi Rustomji Pardivala v. Sub-Inspector, Baig, AIR 1944 Lahore 196, Harries C. J. (speaking for a Special Bench) was considering a case as to whether a proceeding under the Contempt of Courts Act can be drawn up if a lawyer is arrested by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Income-tax Act is a valid piece of legislation. It was further held that an arrest for a civil debt in the process of or in the mode prescribed by law for recovery of arrears of land revenue does not come within the protection of article 22. The aforementioned decisions are authorities for the proposition that a petition for issuance of a writ of habeas corpus is maintainable in the matter of detention to pay a civil debt, if a proper case is made out therefor. There cannot be any doubt that a writ court shall not appreciate the evidence and may in proper cases refuse to exercise its jurisdiction if there exists an alternative remedy. The court also upon consideration of the facts of the matter may come to the conclusion as to whether there were any mala fides on the part of the detaining authority or not. In K. T. Thomas v. CIT [1988] 173 ITR 283 (Ker), T. L. Viswanatha Iyer J., on the facts of the said case held that the petitioner therein dishonestly transferred his right in a property and did not disclose the same to the Income-tax Department. In that view of the matter it was held that the order of detention was valid. The said decision was upheld by K. S. Paripoorna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after conviction on indictment in the usual course. There is no dispute as regards the aforementioned proposition of law. A person who has undergone a criminal trial, if convicted, must have recourse to the provision of the appeal which is provided for under the Code of Criminal Procedure. In such a case, an application for issuance of a writ of habeas corpus will not be maintainable. The said proposition of law has no application in this case. The decision in Col. Dr. B. Ramachandra Rao v. State of Orissa, AIR 1971 SC 2197 and the decision of the Tripura High Court in Smt. Sita Devi Thapa v. Commandant, 6th Battalion Assam Rifles, AIR 1963 Tripura 31 are to the same effect. In Col. Dr. B. Ramachandra Rao v. State of Orissa, AIR 1971 SC 2197, the apex court, inter alia, observed that a writ of habeas corpus is not granted where a person is confined in jail custody by a competent court except unless the order prima facie is without jurisdiction or wholly illegal. It is, therefore, clear that an order which is prima facie without jurisdiction or wholly illegal can come within the purview of the power of judicial review of this court, inter alia, for the purpose of issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n complied with. Thus, there is no service of summons under rule 2 of the Second Schedule. No statement has also been made in terms of rule 17 of Order V of the Civil Procedure Code, that there was no adult member or any agent to accept the service of summons. In Rama Devi Agarwalla v. CIT [1979] 117 ITR 256, a Division Bench of this court while considering a matter of service of notice for reassessment under section 148 of the Income-tax Act, inter alia, held that notice cannot be regarded as a mere procedural requirement and if the notice issued by the Income-tax Officer under section 34 is invalid for any reason, the entire proceeding taken by the Income-tax Officer would become void for want of jurisdiction. If such a notice is ambiguous or defective or otherwise invalid, the same cannot be cured by taking into account and/ or looking into other documents whereby such defects can be rectified and/or omissions filled in. D. K. Sen J. (as the learned Chief Justice then was) in support of his aforementioned proposition relied upon the case of Sewlal Daga v. CIT [1965] 55 ITR 406 (Cal) and Shyam Sundar Bajaj v. ITO [1973] 89 ITR 317 (Cal) and other decisions and held that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Lordship then was), upon taking into consideration, the decision in Collector of Malabar's case [1957] 32 ITR 124 (SC), large number of decisions considered the statutory background of section 222 and relevant rules of the Second Schedule and, inter alia, held : "So far as this point is concerned, a conjoint reading of rule 76(1) and rule 73(1) clearly indicates that no final order of detention in civil prison may be passed by the Tax Recovery Officer against any defaulter unless the Tax Recovery Officer, for reasons to be recorded in writing, is satisfied that either the defaulter, with the object or effect of obstructing the execution of the certificate has, after drawing up of the certificate by the Tax Recovery Officer, dishonestly transferred, concealed or removed any part of his property or the Tax Recovery Officer is satisfied that the defaulter has, or has had since the drawing up of the certificate by the Tax Recovery Officer, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. These are the conditions precedent on which relevant satisfaction has to exist on the part of the Tax Recovery Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegedly the defaulter had refused or neglected to pay the arrear income-tax demand that does not by itself reveal that he had means to pay. If he had not the means to pay, the question of his failing to satisfy the debt does not arise. The said order does not also reveal as to how and in what manner the show-cause as to why he should not be detained in civil prison was served. Assignment of reason apart from being the statutory requirement is also a part of the principles of natural justice. See S. N. Mukherjee v. Union of India, AIR 1990 SC 1984. In that decision at paragraph 37, it has also been stated that there should be some evidence of probative value. In view of the aforementioned reason, we are of the opinion, that there had been several procedural illegalities in passing the orders of detention passed against the detenu. It is not understood as to why so many certificate cases were initiated. There is nothing to show that all the said cases were amalgamated. In the notice under rule 2, the numbers of the said certificate cases had not been mentioned. The question which, however, arises is as to whether a writ of habeas corpus should be issued. This court in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the record, as they appear to be, then there would be error of law on the face of the record if the depositions were insufficient in law to support the committal. Since the court's powers ought to be at their widest for the protection of personal liberty, it seems necessarily right that review by habeas corpus should be as ample as review by certiorari. A prisoner who is entitled to have his detention order quashed is clearly entitled to his release. There is as yet no sign of the doctrine of error on the face being eliminated by the doctrine that all error of law is ultra vires, but that possibility remains open here as elsewhere." Similar view has been expressed in Administrative Law by P. P. Craig, pages 494-495. In the matter of Omritolall Dey [1875] ILR 1 Cal 78, a writ of habeas corpus was issued in a case where the petitioner was detained in execution of a decree passed by the Small Causes Court. The Supreme Court of India had also an occasion to consider the provision of section 51 of the Code of Civil Procedure in Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470, wherein it was held that the simple default to discharge the decree is not enough ; ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." It is true that it is one thing to say that an order is wholly without jurisdiction but it is another thing to say that the order contains an error apparent on the face of the records although passed within jurisdiction. S. A. de Smith in his Judicial Review of Administrative Action, Fourth edition, page 136, inter alia, stated that taking into consideration an irrelevant fact or refusing to take into consideration a relevant fact would also come within the purview of error apparent on the face of the records. The power of judicial review, which is limited, for issuance of the said writ can be exercised in the same manner which can be exercised for issuance of other writs, directions or orders by the High Court in exercise of its jurisdiction under article 226 of the Constitution of India. It has to be borne in mind that a statutory functionary has to act within the four corners of the statute or not at all. In a matter of recovery of tax, the Tax Recovery Officer is required to scrupulously follow the procedure laid down under law. A person can be detained and sent to civil prison for non-payment of the dues only upon complying with the conditions precedent therefor. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detenu must accept. The detenu must also appear before the Tax Recovery Officer on each and every date fixed therefor except for very cogent reasons. He shall file show cause as when called upon to do so by the Tax Recovery Officer without delay and not later than one week from the date of service of such notice. The detenu is further hereby directed to disclose all his assets before the Tax Recovery Officer which would be subject to verification by respondent No. 2. In the event, it is found that the detenu has taken recourse to suppressio veri and suggestio falsi or other acts of bad faith, the Tax Recovery Officer may take appropriate action against him in accordance with law including bringing this matter to the notice of this court, so that if necessary, the court can proceed under the Contempt of Courts Act for violating this court's order. The Tax Recovery Officer shall also be entitled to proceed as against the detenu in accordance with law and pass an appropriate order as he may deem fit and take recourse to any of the modes to recover the arrears of the taxes as is permissible in law including taking recourse to detention of the detenu in custody in terms of the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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